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No clear rule on religious displays

One Ten Commandments display is okay because of its historical meaning, but others make an unconstitutional religious statement.

By BILL ADAIR
Published June 28, 2005

WASHINGTON - Asked to settle two disputes about government displays of the Ten Commandments, a deeply divided Supreme Court on Monday offered muddled and confusing answers.

The court said displays inside two Kentucky courthouses were unconstitutional because they were "an unmistakably religious statement."

But the court said a display at the Texas Capitol was acceptable because the Ten Commandments have "an undeniable historical meaning."

Both decisions were 5-4 and accompanied by sharp dissents reflecting passionate disagreements. The swing vote was not Justice Sandra Day O'Connor, as many experts had expected, but Justice Stephen Breyer, who voted with the majority in both cases. His opinion in the Texas case indicated it was a close call for him.

"The case before us is a borderline case," Breyer said of the Texas monument, which is on the Capitol grounds in Austin. He said that it was intended to deliver a moral rather than religious message and that it was one of more than two dozen monuments and historical markers "designed to illustrate the ideals" of Texans.

The decisions allowed each side to claim partial victory.

"We have reason to be thankful," said the Rev. Rob Schenck, president of the National Clergy Council, who held a news conference outside the court and read the Ten Commandments from a Bible. He praised the Texas decision and said the Kentucky case would still be litigated because the court's decision only dealt with a preliminary injunction.

Barry Lynn, executive director of Americans United for the Separation of Church and State, had the opposite view. He said that "on balance, it's a win for separation of religion and government. The court rejected calls by religious right legal groups to give government an unfettered right to display religious symbols."

Overall, though, the court provided little clarity about the displays - there are hundreds around the nation - and offered confusing guidance to governments that may try to build new ones.

"The court has found no single mechanical formula that can accurately draw the constitutional line in every case," wrote Breyer.

"The court didn't say they are always allowed, they didn't say they are never allowed. They said sometimes, " said Erwin Chemerinsky, a Duke University law professor who represented a Texas man who sought to have the Austin monument removed.

Chemerinsky said Breyer's opinion in the Texas case was so narrowly written that "it doesn't provide a lot of guidance to local governments as to whether they can put up a monument."

Early indications suggest the decisions won't affect the American Heritage Foundation Rock, a 5-foot stone display in the Polk County Courthouse in Bartow. It has an assortment of documents and quotations, including the Ten Commandments, the Declaration of Independence, the Bill of Rights and quotations from Thomas Jefferson and John Adams.

Randy Wilkinson, a Polk commissioner, said that no one has challenged it and that Monday's decision "bodes well for our display. I think ours is similar to the one in Texas because the Ten Commandments are only a portion of it."

Chemerinsky agreed. "I think that would be clearly okay," he said, because the Ten Commandments are "part of an overall historic display."

The Supreme Court has a display in its own chambers. A frieze there depicts Moses with the tablets as well as 17 other figures including Hammurabi, Confucius, Napoleon and former Chief Justice John Marshall.

The Texas case is about a monument built outside the Texas Capitol in 1961. Like hundreds of similar displays around the country, it was paid for by the Fraternal Order of Eagles. It is shaped like two tablets and begins, "I AM the LORD thy God."

For more than 40 years, there were no objections to the monument. But then a homeless man named Thomas Van Orden filed a federal lawsuit that said the monument violated the separation of church and state.

The court's opinion, written by Chief Justice William Rehnquist, said governments "must not press religious observances upon their citizens" but it is appropriate for public displays to acknowledge the role of religion in American life.

Breyer's concurring opinion agreed with the decision but had more reservations and a different explanation. He emphasized that 40 years had passed with no objections; that the monument was donated by the Eagles rather than paid for by the government; and that the law should not "exhibit a hostility toward religions." He took the unusual step of including a color photograph and map in his opinion to show the monument was one of many historical displays on the Capitol grounds.

The Kentucky case involved two counties that posted the Ten Commandments in their courthouses. When a federal court ruled the displays were unconstitutional, the counties passed resolutions calling for a larger exhibit with other historical documents. But the lower courts said the resolutions indicated the county officials still had a religious intent.

Unlike the Texas case, in which the conservative justices formed the majority, the liberal bloc prevailed in the Kentucky decision. The opinion was written by Justice David Souter and joined by Breyer, John Paul Stevens and Ruth Bader Ginsburg. O'Connor, a moderate who is often the court's swing vote, sided with the liberals.

Souter's opinion acknowledged the Ten Commandments have affected the nation's laws but said that they are an "unmistakably religious statement dealing with religious obligations" and that "when the government initiates an effort to place this statement alone in public view, a religious object is unmistakable."

Scalia wrote a spirited dissent to Souter's opinion, noting that the nation's coins say "In God We Trust," that the Founding Fathers often mentioned God in their speeches and that the Supreme Court itself opens each session with someone saying, "God save the United States and this honorable court."

Scalia said a public display is appropriate because the Ten Commandments are endorsed by the largest faiths. "The three most popular religions in the United States, Christianity, Judaism and Islam - which combined account for 97.7 percent of all believers - are monotheistic," Scalia wrote. "All of them, moreover - Islam included - believe that the Ten Commandments were given by God to Moses and are divine prescriptions for a virtuous life."

Both sides agreed Monday that the decisions really didn't settle the disputes.

"It was a split decision," said Lynn, the president of Americans United for the Separation of Church and State. "Split decisions always mean people are going to go and fight again."